Fraudulent Concealment Exception to the Statute of Repose
The Tennessee Medical Malpractice Act's three year statute of repose on filing lawsuits has an exception "where there is fraudulent concealment on the part of the defendant." Basically, a defendant cannot actively prevent the plaintiff from learning about the defendant's wrongdoing, then dodge a lawsuit because the plaintiff did not file in time. The Tennessee Supreme Court described the requirements of the fraudulent concealment exception in Shadrick v. Coker, a 1998 opinion:
(1) that the defendant took affirmative action to conceal the cause of action or remained silent and failed to disclose material facts despite a duty to do so; (2) that the plaintiff could not have discovered the cause of action despite exercising reasonable care and diligence; (3) that the defendant had knowledge of the facts giving rise to the cause of action; and (4) that the defendant concealed material facts from the plaintiff by withholding information or making use of some device to mislead the plaintiff, or by failing to disclose information when he or she had a duty to do so.
The Supreme Court in Shadrick put the burden on the plaintiff to prove the exception, presumably after the defendant has satisfied its own burden of proving the statute of repose as an affirmative defense.